TaxTMI 
TaxTMI 
2014 (8) TMI 214
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....indicate of SAD element separately. The appellant also did not make any endorsement on the invoice to the effect that no cenvat credit of the SAD is admissible in respect of the goods covered therein. The appellant claimed benefit under Notification 102/2007-Cus dated 14.09.2007 which reads as follows : "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled : (a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable at the time of importation of the goo....
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....ause (b) of para 2 of the Notification is to prevent availing of double benefit, i.e., the buyer of the goods takes the credit of SAD paid while the seller gets refund) of the SAD paid. It was noted that in the case of a trader, who is not registered with the department and who is also not authorised to issue CENVATable invoices and who does not indicate in the commercial invoice the details of the SAD paid, the question of taking any credit would not arise inasmuch as commercial invoices issued by a non-registered trader is not a document on the strength of which CENVAT could be availed md in the absence of duty particulars thee question of taking any CEKVAT credit also would not arise. Therefore, it was held that even if (he trader did not make the endorsement las envisaged under clause (b) of paragraph 2, it would not make any material difference and refund of SAD paid could be allowed subject to satisfaction of the other conditions stipulated in the notification. 2.3. However, another coordinate bench of this Tribunal, in the case of Astra Zeneca Pharma India Ltd. vs. Commissioner of Customs, New Delhi 2013 (294) ELT 574 took a contrary view holding that if the condition spe....
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....so construed which enables the assessee to gets the benefit. Accordingly, it is prayed that in a case where CENVAT credit could not be taken at all of the SAD paid by the buyer bf the goods for the reason that the document was not a cenvatable invoice issued by a dealer and the duty element is also not specified in the document, the benefit of exemption under Notification 102/2007 should not be denied. 4. The learned Additional Commissioner (AR) appearing for the Revenue submits that Notification 102/2007-Cus is an exemption Notification which grams a benefit subject to fulfillment of the conditions stipulated therein. One of the conditions prescribed for availing the exemption is that, in the sale invoices, there should be an endorsement to the effect that in respect of the goods covered therein, no credit of the additional duty of customs levied tinder Section 3(5) of the Customs Act, 1962 would be admissible. Therefore, if the invoices do not bear this endorsement, the question of allowing the benefit under Notification 102/2007 would not arise at all. It is argued that the exemption, being in the nature of an exception, should be construed strictly. Therefore, ratio in the c....
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....us dated 2-6-1998. The said exemption underwent many changes over the years and the present exemption is contained in notification 102/2007-Cus wherein the exemption is operationalised through a refund mechanism. Notwithstanding these changes, the object of the levy was to counterbalance the levy of local taxes on domestically produced goods on imported goods so that there is a level playing field between the two. However, when the imported goods are subsequently sold in the domestic market bearing the burden of local taxes, exemption is provided from SAD so as to neutralize the impact of double levy. This object and purpose of the levy and the exemption needs to be kept in mind while interpreting notification No. 102/2007-Cus. 5.2. Rule 9 of the CENVAT Credit Rules prescribes the documents on the strength of which CENVAT credit can be taken. An invoice issued by an importer is also one of the prescribed documents However, for taking the CENVAT credit, under sub-rule (2) of the said Rule 9, following particulars are required to be indicated, namely, details of the duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Servic....